It was a powerful and interesting afternoon. In the hermetically sealed courtroom, without the distraction of politicians, press or demonstrators, the issue quickly focused upon whether the raft of prospective jurors could resolve the matter fairly and on the basis of the evidence presented.
Each side was awarded 30 minutes to explore the views of the jurors. David Lane, tall, thin, articulate, his hands gesturing with almost every remark, started with a bit of humor (conceding that death was the only thing more fearful than speaking in front of a group of people) but then quickly got down to work.
It didn’t take long to ascertain that the environment surrounding the Ward Churchill matter had shifted. As Lane noted in his allotted time, back in 2005, it was “All Churchill all the time,” with anyone and everyone criticizing the CU Professor. Now, Lane largely tried to make a virtue out of the criticism. Professor Churchill (a title used by counsel on both sides) was a critic of George Bush. He invoked the voices that called for his dismissal -- the governor, the legislature, a former Senator – almost as an example of Big Brother, a governmental effort to eradicate unpopular views. And, in a city that went overwhelming for Barack Obama, he raised the specter of Fox News, mentioning the criticisms cast at Churchill by Bill O’Reilly and Sean Hannity.
Lane started with a five or so minute exegesis into the 9/11 essay, becoming the first one in the courtroom to characterize the words that will no doubt be repeated over and over. Professor Churchill (the title used throughout the voir dire) took an “underdog perspective.” Churchill didn’t view the US as hated because of its freedom, the reason given by George Bush, but because of the country's foreign and economic polices. The 9/11 essay viewed the Pentagon as the center of the military and the Trade Towers as the center of the economy as legitimate targets. He brought up the most infamous comment, the reference to Little Eichmann’s and characterized the phrase as a reference to those who take actions where they might not understand the consequences.
Much of the rest of the exchange was an attempt to elicit from the jurors their views on the first amendment and the right of the government to retaliate against someone for exercising his or her first amendment views. He wanted to know: “Who here believes that writing an essay like that is beyond the first amendment protections?” At another point, he equated CU with the government. “CU is the government and the government can’t retaliate against you for your protected speech.” A number of jurors made comments that suggested very strong views on the importance of the First Amendment.
After establishing the critical importance of the first amendment, Lane moved matters around to academic freedom and whether a professor could poke or prod students with unpopular views. A number of jurors spoke about the importance of diverse views in academia. There were references to higher education being a market place of ideas.
He reminded prospective jurors that the First Amendment “lives in a very rough neighborhood.” You don’t need it to protect the right to swap chocolate chip recipes, even the worst dictatorship does that. You need it to be able to criticize the government and to “punch someone in the nose verbally.” That’s what free speech is all about. “It’s a rough place to live.”
Finally, he made it very clear that this was about the First Amendment. He conceded that if Churchill “cheated the way they say he did” then throw him out of court. But Lane promised to show that CU didn’t fire Churchill “because he cheated” but because of his 9/11 essay.
Pat O'Rourke was likewise articulate, speaking without notes, his voice a bit softer than Lane's but no less emphatic. Where Lane was given to hand gestures, O'Rourke mostly kept his hands in his pockets, the approach both understated and effective.
Where Lane characterized CU as “the government,” O’Rourke viewed the University as an employer and the people at the top as having an obligation to act in the best interests of the University. He would later admit that there was a “causal link between the 9/11 essay and the decision of the regents” to investigate but that it was prudent for them to have done so.
He noted that the CU trustees were people with day jobs and who served because “they really care about the university.” He then wanted to know whether an employee had a duty not to hurt the “employer or disrupt how they do business.” O’Rourke wanted to ascertain whether jurors could agree that an investigation might be necessary, if for no other reason than to know the facts, that those running CU had that obligation. With criticism coming from politicians and the public, from parents and alumni, he asked jurors whether it was reasonable for the Board to hear these voices and react to them. Was it unfair for the Board to investigate and to know the facts, to know what its options were, he asked. He pointed out that an investigation did not mean punishment. While there was an investigation of Churchill’s speech, officials at CU concluded that he couldn’t be retaliated against for the views.
He moved on to the internal administrative process used by CU, characterizing the current case as the second trial, a reference to the administrative process accorded Churchill (a characterization that brought an objection from David Lane). The point was to bring home that it was a strength, not a weakness to be judged by faculty and “a jury of your peers.”
He then moved past the speech and wanted to know whether it was reasonable for persons to come forward with other allegations once someone became the center of controversy and whether someone in the middle of controversy ought to otherwise be immunized. “Once you say something controversial and make enough people mad,” O’Rourke asked, do you have immunity, does it take “other issues off the table?”
With all of that, he wanted to know whether this was not the right case for some jurors. A number of prospective jurors expressed misgivings, one of them professing to not know much about the case when he was called for jury duty but becoming increasingly concerned that the steps against Churchill had been a witch-hunt.
O'Rourke engaged in more back and forth with jurors than Lane, with a number asking questions and pointing out what they viewed as problems with his approach. It was most likely exactly what he was trying to accomplish. Those who professed too much concern with CU's action or too little willingness to leave room for the possibility that CU and its board of regents may have acted in the University's best interests would find themselves off the jury. Indeed, one juror confessed after stating his absolute views about the First Amendment that he knew O'Rourke would strike him (a prediction true only to the extent that it was the judge who did so and for cause).
Ultimately, a jury of six jurors and two alternates were selected. Those who had been the most outspoken on both sides were largely gone.